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GSA Buys - Award Without Discussions

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Question:

IAW Part 8.404, Parts 13, 14, 15, and 19 do not apply to BPAs or orders placed against Federal Supply Schedules contracts. Does this preclude Contracting Officials from applying FAR Part 15 to GSA Buys?

Scenario:

Contract Specialist issued an RFP solicitation against the MOBIS Schedule to award multiple BPAs for Management Support Services. The agency intends to make award without discussions. My understanding is that "discussions" fall under Part 15, and when using GSA Schedules, we want to avoid Part 15 procedures because it would mean that we would have to establish competitive range, etc. In addition, Part 15 procedures expose the Government to protest risks. Please advise.

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There is nothing I know of that precludes Contracting Officials from applying all or part of FAR Part 15 to GSA Buys; they're just not required to. The solicitation must set forth whatever procedures that will be followed, and then you must be careful to follow those procedures.

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Yes, the intent of FAR Subpart 8.4 direction is to preclude the use of FAR Part 15. Remember the FSS/MAS establishes the ordering procedures and so FAR Part 15 does not apply unless the specific FSS/MAS contract says it does. I know of no FSS/MAS that provide that FAR Part 15 applies to the ordering procedures.

For ordering procedures GSA has set forth the general guidelines to use. They can be found here…http://www.gsa.gov/portal/category/100755 “Best value” type processes are encouraged to select contractors along with the suggestion that further price reductions from the schedule pricing should also be sought, where appropriate. This suggests to me that you would have “discussions” with contractors but they would again fall short of those as defined in the FAR as “exchanges”. Here are a couple of quotes from the above referenced website desk reference on FSS/MAS use …

“Use oral clarifications.”

And

“Limited communications with Schedule contractors to seek additional or clarifying information is allowed and is not considered formal “exchanges.””

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To add to what others have said, do not use FAR Part 15 terminology (competitive range, clarifications, discussions, final proposal revisions) in the RFQ. If the acquisition is conducted like a FAR Part 15 action (and GAO takes terminology into account) the GAO will treat it as such in the event of a protest and apply their goofy case law when deciding the issue.

You can conduct it like FAR Part 15, but why would you want to?

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C Culham,

I accessed the MOBIS Solicitation and it includes the language prescribed in FAR Part 52.212-1, "The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror's initial offer should contain the offeror's best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the CO to be necessary." I am assuming that it is okay for me to include this language into the RFQ solicitation to instruct offerors how proposals will be evaluated for a commercial buy.

I read the information contained in the MAS Desk Reference and the language you quoted, “Limited communications with Schedule contractors to seek additional or clarifying information is allowed and is not considered formal “exchanges”, pertains to the use of oral presentations. Do you recommend that this language be utilized for the RFQ solicitation?

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Does the MOBIS solicitation apply that provision to competitions for task orders under a MOBIS contract, or only to competitions for award of a MOBIS contract under FAR Part 15?

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Acq_4_Life – Vern has posed one question that would be applicable to your question regarding the language of FAR 52.212-1. By read of 52.212-1 is a provision that is applicable to the solicitation of the proposed MOBIS contract and as such this instruction provision is not carried forward as applicable to the RFQ process for resulting TO/DO’s issued against the awarded contract. I believe I am supported in this view in that the MOBIS Ordering Clause 52.216-18 makes reference only to “terms and conditions” from the MOBIS “contract” being applicable and not the terms and conditions of the “solicitation” to the orders. The “Table of Contents” for the MOBIS solicitation is also support in that it states “Part I” of the package is contract terms and conditions, while “Part II” containing the 52.212-1 clause is “Vendor Instructions”.

Also in a previous post by Vern his caution about how including language that mirrors FAR Part 15 could get you in a pickle with GAO is great advice.

While one of my quotes of the desk reference was taken from the oral presentations my read of that sentence with the rest of the desk reference leads me to believe it is simply support of the fact that limited communication with FSS/MAS contractors is okay whether in the context of oral presentations or in the context of paper presentations.

As you were reading the Oral Presentation discussion did you see the red NOTE box at the top of the page? It reinforces the responses you have received to date in that it is up to CO discretion on the procedures to use when ordering against a FSS/MAS but it is highly recommended by GSA to stay away from FAR Part 15 procedures.

So in direct response to your question if it were me I would not put anything in the RFQ regarding discussions, proceed following FAR Subpart 8.4 and the desk reference, and have limited communications with the contractors, or not, as the case may be as you wind through your selection process.

If you still have a question as to what you should or should not do I recommend you contact the GSA contract representative for the MOBIS and ask how you should proceed. I do suspect that the response you get will generally follow the comments of this entire thread.

PS – And just a little nit picking with regard to your last post where you say “for a commercial buy”. Every buy under the MOBIS made for a MOBIS item (as opposed to an open market item) is for a commercial item. FSS/MAS contracts by their very nature are contracts for commercial items.

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Good Morning Vern,

This provision applies to the award of contracts that will result in Indefinite Delivery, Indefinite Quantity, and Fixed Price with Economic Price Adjustment type contracts.

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C Culham/Vern,

I just received legal's reveiw on the RFP solicitation. See comments below:

"a. Award without discussions - As presented there is no clear indication that award will be made without discussions. According to FAR 15. 305(a)(3) if award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Award will be made without discussions if the solicitation states that the Govnt intends to evaluate proposals and make award without discussions. Please refer to the FAR part mentioned above."

"b. Past Performance - As presented the evaluation of Past Performance is against the rule established in FAR 15.305(a)(2)(iv). Accordingly, in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorable on past performance. Please refer to FAR 15.305(a)(2)(iv).

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C Cuham,

Thanks for providing the desk reference; it is very informative. If I have any additional questions, I will contact GSA's contract representative. Thanks again.

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C Culham/Vern,

I just received legal's reveiw on the RFP solicitation. See comments below:

"a. Award without discussions - As presented there is no clear indication that award will be made without discussions. According to FAR 15. 305(a)(3) if award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Award will be made without discussions if the solicitation states that the Govnt intends to evaluate proposals and make award without discussions. Please refer to the FAR part mentioned above."

"b. Past Performance - As presented the evaluation of Past Performance is against the rule established in FAR 15.305(a)(2)(iv). Accordingly, in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorable on past performance. Please refer to FAR 15.305(a)(2)(iv).

Acq_4_Life,

What do you think of the comments that you received from legal?

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Acq_4_Life,

I don't mean to detract from Don's question because it is really important. But another question is why on you proceeding using FAR part 15? You can mix FAR 15 with FAR 8.4 for ordering but why do it? The guidance Vern gave makes perfect sense and the GSA MAS Desk Reference says follow FAR 8.4 - list your evaluation factors and a brief description of how you will conduct it for quoters and just go with it. I would pull back the solicitation your legal office looked at, revise it, and just issue it onmitting everything with FAR 15

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Don Acquisition,

I do not agree with the recommendations that legal provided. My C/O agrees and requests that I revise the RFP and exclude any language that pertains to FAR Part 15.

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Since FAR 15 does not apply, how does this approach strike readers?

Quote

The agency will assess the résumés, experience, past performance, and the price of quotes in accordance with FAR Subpart 8.4. Non-price factors, when combined, are significantly more important than price. After this assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, he or she reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best. This process will continue until a contract has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, negotiations may be reopened with all firms or the solicitation may be canceled.

Unquote

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napolik - On the right track but changing some of the wording so it does not "talk" like FAR Part 15 would work better for me.

Acq_4_Life - In your revision also get rid of "RFP" too please!!!!!!

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napolik,

I like it too. Thanks.

C Culham,

I thought RFQ was used for dollar thresholds under $150K.

The approach has yet to be tested at GAO, but I think it will fly.

You can use RFPs under 150K. See FAR 13.106. You can use RFQs over 150K. See FAR Part 8.4.

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In all most all cases you can not and should use an RFP for procedures of competing/ordering a FSS/MAS need. I am sure there might be a few exceptions but reference FAR 8.405 and then the rest of FAR 8.4, you use a RFQ as defined in the context of the ordering procedures for a FSS/MAS not a RFP!

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Vern - ( I hope I got all the caps in the right places!)

FAR 8.405 Ordering procedures for Federal Supply Schedules.

Ordering activities shall use the ordering procedures of this section when placing an order or establishing a BPA for supplies or services. The procedures in this section apply to all schedules. For establishing BPAs and for orders under BPAs see 8.405-3.

FAR 8.405-1 Ordering procedures for supplies, and services not requiring a statement of work.

(a) Ordering activities shall use the procedures of this subsection.....

FAR 8.405(1)©(1) Orders exceeding the micro-purchase threshold but not exceeding the simplified acquisition threshold. Ordering activities shall place orders with the schedule contractor that can provide the supply or service that represents the best value. Before placing an order, an ordering activity shall:

(1) Consider reasonably available information about the supply or service offered under MAS contracts by surveying at least three schedule contractors through the GSA Advantage! on-line shopping service, by reviewing the catalogs or pricelists of at least three schedule contractors, or by requesting quotations from at least three schedule contractors (see 8.405-5); or

FAR 8.405-1(d)(2)The ordering activity contracting officer shall provide an RFQ....

I will stop here as the FAR (and the MAS Desk Reference) can be read for what it is.

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I'm not questioning your statements about RFQs. I just don't understand the phrase "you can not and should" use an RFP. Did you mean you cannot and should not use an RFP?

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I never call my request a RFP, even if it is for a multi-million dollar task order.

FAR 8.405-2( c )( 2 ) calls them RFQ under the simplified acquisition threshold, and 8.405-2( c )( 3 ) calls them RFQs above the simplified acquisition threshold.

So I always use RFQ, never RFP, when ordering services under Federal Supply Schedules. I don't want to introduce any Part 15 wording.

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Vern - My mis-read of your quick question, sorry. Yes to your question in your last post, my post was in error and your read is correct. Bluntly restated on my part, do not use an RFP for a FSS/MAS.

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